Suri Ratnapala enters Debate on the Control of FB and Other Such ‘Engines’

Suri Ratnapala, in The Australian, 2 February 2021, where the title reads thus “Proof of life on social media to screen out evils” …. with highlighting emphahsis imposed by The Editor, Thuppahi

The suspension of Donald Trump’s accounts by Twitter and Facebook and the shutdown of Parler by Amazon following the events of January 6 heighten concerns about the power of the Big Tech firms to censor political information and debate.

First, a full disclosure. I am a critic of Trump of a classical liberal disposition. I am a social network recluse with only an email account. I believe the silencing of Trump by Facebook and Twitter may have served the immediate public interest but has troubling consequences for liberal democratic government.

Big Tech companies occupy a unique position within the online economy that has few parallels in the offline world. The online economy is a mind-bogglingly complex system of interdependent providers, technologies and regulations. But we do know two things about this industry. First, it has given billions of people, including the poorest in the world, instant access to information and means of communication. We also know the online system is a public space where evil happens, including child abuse, terrorism and misinformation that harms liberal democratic institutions.

Tech firms are under growing pressure from the left and right. Conservatives complain their viewpoints are suppressed, and the left accuses them of being too permissive. Both sides want reform but disagree on the goals and means. The totalitarian option is effective, where the state controls who delivers online services and what they may deliver. That is unthinkable in a free society. Heavy-handed state regulation will destroy the industry. But democracies cannot afford inertia.

Two questions arise: who may speak, and what may be spoken. The first concerns the power of tech firms to deplatform individuals. The second concerns content moderation that stretches from spam filtering to crime blocking, privacy protection and political censorship. These questions are interrelated. Twitter and Facebook censored some of Trump’s postings before he was booted out after inflaming the mob that ­attacked the Capitol.

In the offline economy, we have choices that we lack online. I can find another barber, or grocer, or doctor if I am unhappy with the service I get. I can switch TV channels, radio stations and newspapers. Migration is not so easy within social media. Online services operate within a web of “live” interconnections. A single click may activate a dozen service providers from Facebook et al to financial institutions, payment processors, content moderators, advertisers, infrastructure providers and regulators. This interdependence creates peer pressure that leads to a common culture, which at this point leans left. This consensus could lead to users being ostracised as Trump is by numerous platforms.

The centuries-old common carrier law may be used to deal with this problem, as the classical liberal scholar Richard Epstein has proposed. A common carrier offers its services to the general public, hence cannot discriminate or exclude persons or goods except on legal grounds. Internet service providers are common carriers under US, Australian and other national laws. They must observe network neutrality. This law can be extended, if they are not already, to firms that use the infrastructure, such as Facebook, Twitter and Google. This would mean a person has legal remedies for being booted out, including ­injunctive relief and damages.

As to what can be said, Facebook et al face two kinds of complaints. One sort is about harm by censorship and the other about harm by non-censorship. A common carrier has no duty to carry dangerous items or take undue risk. In the US, the second class (those harmed) cannot sue the social media firm which, under s. 230 of the Communications Decency Act, is deemed not to be the publisher or speaker of content. But victims can sue the authors if they can be identified. The worst offenders, though, speak through fake accounts and pseudonyms. Facebook et al employ armies of moderators at high costs. Facebook’s 2020 White Paper appeals for regulatory guidance, proposing that “procedural accountability regulations could include, at a minimum, requirements that companies publish their content standards, provide avenues for people to report to the company any content that appears to violate the standards, respond to such user reports with a decision, and provide notice to users when removing their content”.

New US regulations will not help victims while s. 230 remains. Respected IT analysts on the left and right think the revision of s. 230 will doom the internet as we know it. A more immediate and impactful reform is to require social media speakers to reveal their identity and expose themselves to the processes of the law. Facebook requires proof of identity in suspicious cases, as does Google for certain transactions. “Know your customer” is a Wall Street motto that makes equal sense in the social media economy. Suing these miscreants might be far less rewarding than going after the tech firms. But it will be a net gain for society if internet abuse is lessened by firms adopting this simple practice that strengthens the rule of law and public safety.

Suri Ratnapala is Emeritus Professor of Public Law at the University of Queensland.


Will too…..  6 HOURS AGO
Once companies like facebook present advertising, news, etc. off their own bat they cease to be an independent facilitator and become publisher and should be liable to the same laws and liabilities. They should be subject to the same controls. The only thing they can’t be liable for is the publishing of private content posted by members and should step away from censoring that totally. They should be held liable for any biases their censoring creates or the damage it may do. They are not controllers of our social conscience.
John Kidd …. 7 HOURS AGO

Well said, Suri.  I have for long regarded (un)social media as a Cowards’ castle for misanthropes to anonymously spread defamatory rumour, hateful speech and the like about others.  Unfortunately it has been politicians like Donald Trump whose good works have been overshadowed by unthinking recourse to Twitter who have set a bad example.  But at least Trump is bold enough to not hide his identity.  You make some interesting points such as use of the common law governing common carriers.  But, at the very least, authorship identity should have to be disclosed.

ivan ……………………….. 8 HOURS AGO
If you can’t see anything wrong with a sitting United States president being censored and denied access to by the 70 million or so people who voted for him then you can’t really then complain about big tech and their tactics. So many who would normally jump up and down over such basic removal of rights are willing to look the other way on this because it was Trump. It will come back to haunt them, it always does. On top of which a business that was about to go huge because of such censorship was shut down overnight, a simply case of a big business wiping any threats to its monopoly. Make no mistake Parlor was not shut down because of incitement to violence despite big tech insistence. Instead conservatives were jumping ship big time leaving the likes of FB and Twitter to flock to Parlor in a protest move that was going to cost big tech big. So what did they do, why they simply pulled the plug. And no one said a word. I have no doubt some law was broken there but like I said those in the know looked away after all orange man bad.
Chris …………………………….. 10 HOURS AGO
The impression I get from the bloggers and columnists I read is that we are at the beginning of the Anglosphere’s own Cultural Revolution. Perhaps the best defense for society would be to hold public shamings of Critical Theory-based race profiteering?
It was a lot simpler when all you had was the guy outside the railway station with a sandwich board saying, “The end of the world is nigh”.
Mark IV …….10 HOURS AGO

The second concerns content moderation that stretches from spam filtering to crime blocking, privacy protection and political censorship. Unfortunately the application of this is very opaque, even amongst main stream media that monitors on-line commentary.

Duncan …………. 10 HOURS AGO

Forcing speakers on social media to identify themselves is problematic because of the Left’s cancel culture. People offering opinions that would be perfectly acceptable at a barbecue, can find themselves sacked or their businesses boycotted if they make the same comment on social media and it is spotted by social justice warriors. Any move to make speakers identify themselves must be balanced with shield laws to protect them against financial retribution for offering an opinion. This is not just an issue for social media – newspaper comments sections would also shrivel if people had to use their full name.
Arvid  …………………….. 16 HOURS AGO
Mmm. Nothing has changed. Traditional media was a source and does not report many things choosing what/will interest/sell/influence/entertain.

I am sure if media’s “algorithms” for choosing what to push and what to suppress via column inches, notoriety, controversy, obscurity or anything else will never be known as will the choice to run silent, promote or demote.

Fortunately like media, you can choose to do something different. The current Internet giants will wane and be replaced by something else.

I hope Parler sues the living daylights out of Amazon (I am a happy customer but they were wrong and they need to fix it). It was dead wrong to burden the company with a personal issue perceived about Trump which was dead wrong. How could anyone know unless both sides are heard?

Likewise, your Trump (the person) disclaimer was most telling.

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